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2004.07.18

Naomi Campbell and online privacy (UK)

British solicitor Sarah Monk has a thoughtful essay in New Media Zero about the online impact of the recent Law Lords' decision in a case involving super-model Naomi Campbell: "...it's important to remember that this case isn't just applicable to celebrities who are routinely hounded by the paparazzi. The principles laid down by the Lords apply to anyone passing on information that could be characterised as confidential or private.

"This presents the online world with a major problem. Nowadays the first place that stories often circulate is in Internet chat rooms or on message boards. As with defamatory material, anyone involved in passing on private information can be fixed with liability. So we're not just talking about the person posting the material; an ISP or chat room host could also be targeted....

"Whereas with newspapers the process of vetting content is taken very seriously by editorial staff before publication, chat room hosts generally adopt the approach of removing material after publication once they are notified of a complaint. This strategy is fine where the complaint relates to defamatory postings... This is the so-called 'notice and take down' procedure. Where a complaint relates to material that's an invasion of someone's privacy or is confidential, there's no such statutory defence.

"As with defamation, the person making the complaint is likely to attack the chat room host or the ISP for the following reasons: first, because they want the information taken down; second, because they want to make an example of them and warn off others from further circulating the information; third, because the host is likely to have deeper pockets than the author from which to pay damages and costs; and finally, because the author of the material is often untraceable in any event.

"The question is how to assess whether material does in fact infringe an individual's privacy. The guidelines from the Law Lords in Campbell's case aren't particularly clear on this matter. The bare bones of the test they applied are whether the information is confidential and, if it is, whether publication is justified... The difficulty in applying this test in practice is aptly demonstrated by the five Law Lords being unable to agree on how it impacted upon the Campbell claim...

"Applying the House of Lords test is a heavy enough burden for experienced editorial staff in newspapers and broadcasters. However, it's a burden that will also now fall squarely on the shoulders of chat room hosts and ISPs..."